Sherwood v. Commissioners , 1923 Ohio Misc. LEXIS 1637 ( 1923 )

MAUCK, J.

Epitomized .Opinion

This is an action brought by Myra Morris against an executor of her mother’s will. Morris claimed that under the provisions of her mother’s will she was given a legacy of $2,000, which defendant, Mill, executor, had appropriated to his own use. The will provided that Myra was to have $2,000, “but if she did not claim the ’egacy . . . within 2- years after my death, then, etc ” The plaintiff’s mother died in September, 3918. The ffiaintiff did not make any claim for said legacy until May, 1921, as she did not learn of her mother’s death- until March, 1921. By the terms of the will, the executor was to get the $2,000 after the two-year period had elapsed. The evidence also disclosed that the plaintiff was in distant lands at the time of her mother’s death and that the executor knew her whereabouts, but made no effort to inform her either of her mother’s death or that her mother had left her a legacy under the terms of her will. The jury returned a verdict in favor of the plaintiff in the sum of $2,000. In reversing the judgment, the Court of Appeals held:

1. Under the term's of the will the intention of the testatrix was that her daughter should be entitled to the legacy .only if she made claim or demand for it within the time limit in said will and that the time mentioned in said will is part of the gift itself and a limitation thereon.

2. As the will did not impose any duty upon the defendant as executor or legatee to notify the plaintiff and as there is no statute imposing such duty, the executor or legatee was not bound to notify the plaintiff of the bequest to her and that the defendant did not perpetrate am7 fraud upon plaintiff in trying to conceal from her her said estate or mislead her in any way in regard to her said rights under said will which would work an estoppel.